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Fair use is a statutory exception to the copyright holder's bundle of exclusive rights. It allows for the unlicensed (that is, without permission or payment of royalty) use of a copyrighted work where the balance of several factors weighs in favor of such use. Four of these factors are specifically enumerated in the statute. Application of fair use requires a factual analysis of these four factors as applied to the facts of the proposed use. Although no single factor is determinative, recent court decisions reveal that transformative use is an important consideration as is the potential harm to the market for the copyrighted work.
The four statutory factors of fair use are:
The purpose and character of the proposed use
The nature of the work being used
The amount of the work being used
The effect of the use upon the market for the copyrighted work
Several factual inquiries drive analysis of each of the four factors. The resources in this Toolkit can help libraries understand and conduct these inquiries. Several libraries have also created excellent guides to understanding and applying the four factors:
Reclaiming Fair Use by Patricia Aufderheide; Peter JasziIn an update to the 2011 edition, this second edition of Reclaiming Fair Use addresses the expanded reach of fair use. It tracks the Twitter hashtag #WTFU (where’s the fair use?), the maturing of the transformativeness measure in legal disputes, the ongoing fight against automatic detection software, and the progress and delays of digitization initiatives around the country (Description from the publisher).
This LibGuide maintained by Georgia State University provides a timeline of the law suit originally filed in 2008 by three academic publishers GSU over the use of copyrighted materials in the library's e-reserves system.
Fair Use Week is an annual celebration held the last week of February. Various resources, including handouts, images, and a calendar of events by participating institutions are available at the Fair Use Week website.
Infographics include How Fair Use Helps in Saving Software, Fair Use Promotes the Creation of New Knowledge, Fair Use Myths and Facts, Fair Use in a Day in the Life of a College Student, Fair Use Fundamentals, and The Good News about Library Fair Use
This Code of Best Practices identifies eight scenarios identified by the academic and research library community where fair use principles commonly apply and steps libraries should take to help assure fair use.
The Code of Best Practices in Fair Use for Software Preservation provides clear guidance on the legality of archiving legacy software to ensure continued access to digital files of all kinds and to illuminate the history of technology.